1989 will be remembered as an extraordinary year — a year in which millions took to the streets to demand freedom, a year in which revolutionary governments started dismantling the apparatus of totalitarian socialism. The struggle is far from over, but its beginnings have been marvelous to behold.

Andrei D. Sakharov helped to foster these beginnings. For years, he tirelessly championed the rights and liberties of people all over the world, but especially in the Soviet Union. He paid a terrible price for his efforts. Suffering exile, he also shouldered the burden of bringing the even greater suffering of others to world attention. Fortunately he lived long enough to witness the early fruits of his painful labors, and was able to participate in the earliest stages of his country’s, and Eastern Europe’s, social and political reforms.

Sakharov died on December 14, 1989, worn out. Among his last labors, he prepared a draft constitution for a new Soviet Union. It was a “discussion draft” — frequently revised, even in his final days — that attempted to articulate the great themes and necessary details of a new compact among 300 million people of a hundred nationalities, with scores of languages and numerous alphabets, all sharing a common heritage of bondage to a lawless, totalitarian theocracy.

Sakharov’s draft differs fundamentally from the tone, organization, and preoccupations of the U.S. Constitution. It is both broader and narrower than our Constitution, addressing lofty global concerns as well as highly particularized elements that we would consider more “legislative” than “constitutional” (although some of our own states’ constitutions also cover numerous “legislative” details). It should be read in light of the political and historical circumstances that faced Sakharov, the realities of current Soviet experience, as well as in light of its tentative, heuristic character. Although I believe that key features of U.S. constitutional theory, practice, and “style” suggest vital improvements — a theme I shall return to — this draft is a powerful point of departure, a poignant gift from a good and great man. Its first paragraphs, particularly, project a vision of global political goals and arrangements that is bold, refreshing, and as revolutionary in its time as the U.S. Constitution was two centuries ago.

Sakharov’s draft was entirely his own. Although appointed to a committee that President Gorbachev commissioned to write a new Constitution, Sakharov declined to participate on a joint draft, believing that the committee as a whole would fail to address many important issues. According to one of Sakharov’s close friends, Gorbachev was quite worried by this and dispatched an emissary to determine whether Sakharov was accepting or declining committee membership. Sakharov answered that he was not declining, he merely wished to write a draft of his own. As of early February 1990, the Committee had still not met. Sakharov’s Constitution is the only draft in existence.

As suggested, this draft was intended to stimulate debate on the key issues Sakharov believed had to be resolved in order to set up a workable government. In preparing it, however, Sakharov also suggested specific ingredients of a balance among lofty principles, pragmatic governance, and Soviet experience. This was no simple task, as each day’s news confirms. There are many who doubt that a workable compromise — whether along lines suggested by Sakharov, or any others — can ever be achieved. Sakharov was not among them. He focused upon identifying and addressing the questions that such a compromise would have to resolve. His proposed constitution, albeit tentative, deserves respectful consideration.

Sakharov’s draft would create a new, voluntary Union — the Union of Soviet Republics of Europe and Asia. Contemplating that its constituent republics might wish to join on different terms, the draft permits special protocols to be appended to the Union treaty signed by each joining republic. (Recall that Texas joined the United States under a special protocol.) It even contemplates republics combining their respective governments. It subsumes questions of “sovereignty” within innovative permutations of federation and confederation — all within the context of a Union that is itself explicitly governed by world norms of lawful government, individual rights, environmental protection, peaceful dispute resolution, etc. In this and several instances, Sakharov seems to be asserting that the problem, as currently framed, may be insoluble, but that by changing the context of the problem, by transcending the terms of the old insoluble debates, a basis for pragmatic accommodation might be found.

Language, as an extension of the nationalities problem, is similarly problematic. How does one govern a vast geographic area without a common language? Yet Russian, having been imposed, is hated by many of the constituent nations. Sakharov’s draft deftly provides that each republic may choose whatever official language or languages it wishes; the draft further asserts that “the language used between nations and nationalities shall not be determined as a constitutional principle”; yet the draft also provides that Russian shall be “the official language of inter-republican relations.” Thus, each national group may use its own language; as between national groups, any language is permissible; but as between the governments of the constituent republics, a single language being necessary, Russian is designated.

Because Sakharov was attempting to establish a different kind of government and social system — a non-totalitarian, non-socialist society — he found it necessary to prohibit specific evils of the current system, and to define specific rights and relationships that would remedy current flaws. If adopted, these provisions might some day appear as anachronistic as our third amendment, which prohibits the quartering of soldiers in private homes during peacetime. Yet at this juncture of Soviet history, these provisions are needed. For example, Sakharov’s draft states that the “President shall not combine his post with a leading post of any party.” (Paragraph 35) Even though this draft eliminates the current Constitution’s famous Paragraph 6, which grants primacy to the Communist Party, as well as other provisions that undergird the current socialist theocracy, and even though Paragraph 7 of the draft appears to prescribe a multiparty system, the draft’s explicit Paragraph 35 prohibition targets a specific evil well known to Soviet experience, namely, the confusion between politics and government and the conflict of interest inherent in a party boss being chief of state.

Currently, Gorbachev is General Secretary of the Communist Party, head of the legislature, and head of state. He was chosen by the newly constituted Congress of People’s Deputies to serve as Chairman of the Supreme Soviet, which is elected by the Congress; under the current Constitution, the Chairman of the Supreme Soviet also serves as head of state. Currently, the Council of Ministers is the “supreme executive power” of the government; the chairman of that body is the Prime Minister — that is, the chief executive officer of the government (currently, Nikolai Ryzhkov). Nothing in the current Constitution bars Gorbachev from also serving as Prime Minister, thereby serving as head of the party, head of the legislature, head of the government, and head of state. Stalin did.

Sakharov’s constitution draws clearer lines among these various roles, although it also establishes areas of shared power. It vests supreme legislative power in a Congress of People’s Deputies, which is a bi-cameral legislature (one chamber representing territories, the other, national groups). The Congress elects a smaller body (number not specified), called the Presidium, which merely serves to coordinate congressional activity. This new approach contrasts sharply with current law, under which the Presidium has frequently usurped legislative powers. Furthermore, Sakharov’s draft forbids Presidium members from holding “any other leading posts in the Government of the Union, the republics, or [any] parties.” Sakharov’s constitution eliminates the Supreme Soviet, and therefore also eliminates the position of its elected Chairman as head of Congress and head of the Union.

The draft retains the Council of Ministers. Its members, including the Chairman (Prime Minister), are appointed by the Congress. The President of the Union, elected by direct popular vote for a five-year term, is the head of state. He is the Commander in Chief of the armed forces, and represents the Union in foreign affairs. He has the “right of legislative initiative with respect to Union laws” and veto power “with respect to any laws and decisions adopted by fewer than 55 percent” of the Congress.

Sakharov’s draft offers only three sentences regarding the judiciary. These include a reference to a constitutional court, whose jurisdiction “shall include the review of problems and cases of a Union and inter-republican character” (but does not explicitly include interpreting the Constitution, or determining the constitutionality of legislation). The current Constitution does not provide for any such court at all, however. Thus we see that Sakharov was groping towards the rudiments of a tripartite government, with judicial review. But he did so more in terms of rejecting the old — seeking to avoid manifest errors from the past — than of embracing what American constitutional theorists would deem a wholly satisfactory new political compact.

In the spirit of the debate that Sakharov hoped to stimulate, I here offer some observations and criticisms. Again, the first few paragraphs are very powerful indeed. Possibly they should appear as a preamble. The structure of the remaining document needs refinement. In general, a constitution should serve above all to provide the ordinarily intelligent reader with a clear overview of how the government functions; what its parts can and cannot do, and how those parts check and balance each other. Sakharov’s draft adopts many elements of a tripartite model, of a federal structure, and of a bill of rights, but these elements are not presented in a sufficiently orderly or organized fashion, and in some cases are not sufficiently elaborated. The powers of the Congress, for example, are barely mentioned (with the exception of budgetary oversight and control of the Central Bank).

As indicated, the judicial power is also barely mentioned, although the draft prescribes judicial review “of problems and cases of a union and inter-republican character.” Given the current status of the judiciary in the Soviet Union, this subject should receive greater attention. Currently, the judiciary has no real power; indeed, the Presidium of the Supreme Soviet has interpreted its own prerogatives to include interpreting and enforcing the Constitution. Given that the Congress and the Supreme Soviet are often not in session, the Presidium is sometimes (in effect) both maker and interpreter of the law. This problem has caused difficult confrontations between the republics and the Central Government. Recently, for example, in response to republics passing their own laws on the rights of citizens with respect to voting and residency, the Presidium passed resolutions holding those laws unconstitutional. These resolutions were accompanied by orders to the republics to rescind those laws.

Similarly, lack of credible judicial oversight of governmental activities, such as prosecutions, leads to prevalent abuses of individual rights. That is why Soviet citizens must frequently resort to international media and world opinion to effectively redress violations of their constitutional rights. It is also why government officials often assert that rights enumerated in the Constitution and the International Covenants on Human Rights are not directly enforceable.

Because of this problem, the many rights enumerated in Sakharov’s draft run the risk of not being enforced. For example, the draft guarantees “the right to be the master of [one’s] own physical and intellectual abilities.” This provision addresses the problem of compulsory labor. Under current law, including the Constitution, everybody must work. Nobody may refuse to accept a bureaucrat’s job assignment, and the criminal law provides stiff penalties for evading “socially useful” work. This permits prosecutors and bureaucrats to define work as they choose, and to compel people to fulfill Party or State directives. For example, Nobel Laureate Josef Brodsky, a poet, was prosecuted for evading socially useful work because he spent his intellectual and creative energies as he chose, not as directed. Under Sakharov’s Constitution, Brodsky would theoretically be free to “work” as he chose, but he might not be able to enjoy this right unless the courts were explicitly empowered to enforce it.

This point leads to my main criticism of Sakharov’s draft. In another document produced during this same period — a draft law on governmental powers during war or civil emergencies — a working group under Sakharov’s direction adopted a style of composition that differs from other USSR laws and differs also from his draft constitution. In this style, the “freedom format,” the citizens tell their government what it may or may not do, not vice versa. In broadest terms, this style asserts that whatever is not explicitly prohibited to citizens, by the “limited” government of their creation, is permitted. This style’s alternative asserts that whatever is not explicitly permitted, is prohibited.

A constitution whose format “enables the citizenry” has to be very long and detailed if its purpose, in fact, is to limit the government. Its format is efficient only for constitutions of enslavement. This stylistic point is especially important when, as in Sakharov’s draft, the heretofore terra incognita of economic rights and freedoms must guarantee, indeed encourage and celebrate, a multifoliate diversity of activities previously condemned and proscribed.

The broad features and particulars of Sakharov’s constitution, preceded with a preamble composed of his first powerful paragraphs, modified otherwise along lines here suggested, should be poured into a “freedom format” that clearly enumerates the limited powers of the Union government, specifies the allocation of responsibility among its parts, and informs the government what it may, and may not, do. Probably the best way to accomplish this last, crucial goal, is by way of a Bill of Rights. So modified, Sakharov’s constitution could become a truly historic political charter.

Note: This essay was written shortly after Academician Sakharov’s death and reflects one American lawyer’s scholarly perception of the Sakharov’s constitutional draft in the late Soviet period. As such, it is a valuable historical document in itself, serving as a natural link between the two epochs, the past and the present. See Sakharov's Constitution